Citation Nr: 1529676
Decision Date: 07/10/15 Archive Date: 07/16/15
DOCKET NO. 11-18 283 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for glioblastoma multiforme for purposes of accrued benefits.
2. Entitlement to service connection for the cause of the Veteran's death.
REPRESENTATION
Appellant represented by: Cynthia Harbin Holman, Attorney
WITNESSES AT HEARING ON APPEAL
Appellant and her daughter
ATTORNEY FOR THE BOARD
S. Syverson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1987 to March 1992. He died in September 2011. The appellant is his surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions on behalf of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.
In June 2010, VA denied entitlement to service connection for glioblastoma multiforme. The Veteran disagreed with the decision and perfected an appeal of this issue. Following the Veteran's death, the appellant was recognized as the substitute-claimant in the appeal. See 38 U.S.C.A. § 5121A (West 2014). As such, she brings the current claim without the restrictions imposed by 38 U.S.C.A. § 5121 (West 2014).
In April 2013, VA denied entitlement to service connection for the cause of the Veteran's death. The appellant disagreed with the decision, and this issue is also for consideration.
In October 2014, a travel board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At the hearing, the undersigned agreed to keep the record open for 90 days to allow for the submission of additional evidence. The appellant submitted additional pertinent evidence accompanied by a waiver of Agency of Original Jurisdiction review. See 38 C.F.R. § 20.1304(c) (2014).
In February 2015, the Board issued a decision in this case. That decision was vacated in June 2015 because the appellant submitted additional pertinent evidence within the 90-day period that was not added to the appellant's electronic file until after the Board's February 2015 decision. In the order vacating the Board's February 2015 decision, it was noted that the appellant would be afforded 60 days to submit additional evidence and argument. In June 2015, the appellant submitted additional argument and indicated that she would not be submitting additional evidence or argument.
This is a paperless appeal, and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed.
The issue of entitlement to death pension has been raised by the record. See Improved Pension Eligibility Verification Report received in April 2013. This claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014).
FINDINGS OF FACT
1. The Veteran was diagnosed with glioblastoma multiforme in June 2009. He died in September 2011; the death certificate lists the immediate cause of death as glioblastoma.
2. At the time of his death, the Veteran was service-connected for lumbar degenerative joint disease, left lower extremity radiculopathy, right lower extremity radiculopathy, left shoulder subacromial bursitis, and patellofemoral syndrome of the right and left knees. The combined evaluation was 90 percent.
3. The Veteran did not participate in a "radiation-risk activity" as defined by regulation for purposes of presumptive service connection for diseases specific to radiation-exposed veterans.
4. The Veteran's DD Form 1141, Record of Occupational Exposure to Ionizing Radiation, shows a total lifetime accumulated dose of 0.033 rem. The appellant has not submitted a dose estimate from a credible source showing a material difference with the dose data derived from official military records.
5. The most probative evidence of record is against finding that the Veteran's glioblastoma multiforme is related to active military service or events therein, to include radiation exposure; and the disorder was not manifest during service or to a compensable degree within one year following discharge from active duty.
6. Service connection is not established for the Veteran's immediate cause of death and his service-connected disabilities did not contribute substantially or materially to his death.
CONCLUSIONS OF LAW
1. Glioblastoma multiforme was not incurred or aggravated during service, nor may it be presumed to have incurred therein, for accrued benefits purposes. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107, 5121A (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311, 3.1010 (2014).
2. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C.A. §§ 1310, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.312 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in November 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The letter also provided notice as to how VA assigns disability ratings and effective dates. This letter was adequate and it is not necessary to provide further notice to the individual requesting substitution. See Veterans Benefits Administration Fast Letter 10-30 (Revised) (April 3, 2013).
VA notified the appellant of the information and evidence needed to substantiate and complete a claim of entitlement to service connection for the cause of the Veteran's death by correspondence dated in November 2011, March 2012, and January 2013. See Hupp v. Nicholson, 21 Vet. App. 342 (2007). The appellant was also provided notice as to how VA assigns effective dates.
VA satisfied its duty to assist. The claims folder contains the Veteran's service treatment records, service personnel records, VA medical center records, private medical records, and Social Security Administration records. VA also conducted development pursuant to 38 C.F.R. § 3.311 (Claims based on exposure to ionizing radiation), to include obtaining an advisory medical opinion from the Under Secretary for Health.
The appellant and her attorney argue that pursuant to the duty to assist, VA should obtain an independent radiation dose estimate. Specifically, they demand a dose estimate based on lay statements that the Veteran suffered a major radiation dose exposure during service and that it was not recorded. In argument dated in October 2013, the attorney argued that they had demonstrated a material difference between the Veteran's service dosimetry readings and his actual exposure to ionizing radiation.
The Board acknowledges the request, but while the appellant argues that the Veteran had an unrecorded high dose of radiation exposure during service, she has not submitted a dose estimate in support of her claim. Although the appellant submitted a January 2015 opinion from Dr. H., the Veteran's physician, Dr. H. did not offer a dose estimate. Rather, he observed that "[a]ccording to the records, it appears impossible to quantitate the level of radiation exposure from [the Veteran's] assigned duty." Additionally, the appellant's lay statements simply do not constitute a dose estimate from a credible source as contemplated by the regulations and thus, there is no basis for referral to an independent expert. 38 C.F.R. § 3.311(a)(3) ("A dose estimate shall be considered from a 'credible source' if prepared by a person or persons certified by an appropriate professional body in the field of health physics, nuclear medicine or radiology and if based on analysis of the facts and circumstances of the particular claim."). Simply put, without a dose estimate from a credible source there is no credible evidence reflecting a "material difference" warranting efforts to secure an independent dose estimate. Id.
In sum, there is no evidence of any VA error in notifying or assisting the claimant that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159 (2014).
Analysis
Service connection for glioblastoma multiforme
As noted, the appellant is the substitute-claimant. Thus, the record is not closed on the date of death and additional evidence is for consideration.
Private medical records show that the Veteran was diagnosed with glioblastoma multiforme (a brain tumor) in June 2009. The Veteran argued that his tumor was related to in-service radiation exposure. In a December 2009 statement, the Veteran reported that he was a radioman aboard a nuclear submarine, the USS GEORGE BANCROFT (SSBN 643) while major renovation, described as removal of asbestos lagging from the main reactor vessel, was being done. He stated that this was the only time in his life that he was exposed to major levels of radiation.
The Veteran's DD Form 1141 shows that during the period from January 1989 to October 1991, his total accumulated radiation dose was 0.033 rem. Service personnel records show that on October 6, 1991, the Veteran was disqualified for assignment to nuclear weapons positions. In this latter regard the Board notes that the appellant was referred for non-judicial punishment shortly prior to that date following a period of unauthorized absence, that the Veteran had other periods of nonunauthorized absence, and that his records include other counselling memos.
Certain diseases, including cancer of the brain, are service-connected on a presumptive basis if they become manifest in a radiation-exposed veteran. See 38 C.F.R. § 3.309(d). The term "radiation-exposed veteran" includes a veteran who participated in a radiation-risk activity while serving on active duty, active duty for training, or inactive duty training. 38 C.F.R. § 3.309(d)(3)(i). The term "radiation risk activity" means participation in atmospheric nuclear weapons testing; post-war occupation of Hiroshima or Nagasaki (8/6/45 - 7/1/46); internment as a prisoner of war in Japan; assignment to a gaseous diffusion plant at Paducah, Kentucky, Portsmouth, Ohio, or area K25 at Oakridge, Tennessee provided certain requirements are met; participation in underground nuclear weapons testing at Amchitka Island, Alaska; or, service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under Section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000. 38 C.F.R. § 3.309(d)(3)(ii)(A)-(E).
The evidence of record clearly shows a diagnosis of glioblastoma multiforme (brain cancer). Review of service records, however, does not show that the Veteran participated in a radiation risk activity as defined by regulation. Consequently, service connection on a presumptive basis for diseases specific to radiation-exposed veterans is not warranted.
In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
Service connection may also be granted for certain chronic diseases, including malignant tumors of the brain, if manifest to a compensable degree within one year following separation from active duty. 38 C.F.R. §§ 3.307, 3.309(a).
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
In February 2013, the appellant's attorney stated that glioblastoma multiforme did not arise during service or within any presumptive period; rather, it is argued that the disease was due to a significant high dose radiation exposure that occurred during service. As to this argument, the Board notes that the specific requirements for adjudicating claims for service connection based on exposure to ionizing radiation are found in 38 C.F.R. § 3.311.
In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period and it is contended the disease is a result of ionizing radiation exposure during service, an assessment will be made as to the size and nature of the radiation dose or doses. 38 C.F.R. § 3.311(a)(1).
In a claim based on occupational exposure to ionizing radiation, a request will be made for any available records concerning a veteran's exposure to radiation. These records normally include but may not be limited to a veteran's Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), if maintained, service medical records, and other records that may contain information pertaining to a veteran's radiation dose in service. All such records will be forwarded to the Under Secretary for Health, who will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies. 38 C.F.R. § 3.311(a)(2)(iii).
When it is determined that a veteran was exposed to ionizing radiation, subsequently developed a radiogenic disease, and such disease first became manifest during the applicable period, the claim will be referred to the Under Secretary for Benefits for further consideration. 38 C.F.R. § 3.311(b)(1).
The term "radiogenic disease" specifically includes tumors of the brain and central nervous system. 38 C.F.R. § 3.311(b)(2)(xx). The disease was diagnosed in 2009 and therefore, was manifest 5 years or more after exposure, as required. 38 C.F.R. § 3.311(b)(5)(iv).
On May 7, 2010, the Director, Compensation & Pension Service, requested that the Under Secretary for Health complete a radiation review under 38 C.F.R. § 3.311. On May 24, 2010, the Acting Deputy Chief Public Health and Environmental Hazards Officer (ADCPHEHO) responded to the request and opined that it was unlikely that the glioblastoma multiforme could be attributed to in-service radiation exposure. This opinion was based on a finding that the Veteran's accumulated total lifetime dose was shown as 0.033 rem and with consideration of scientific literature as follows:
The Health Physics Society, in their position statement PS010-1, Radiation Risk in Perspective, revised in August of 2004, states that "in accordance with current knowledge of radiation health risks, the Health Physics Society recommends against quantitative estimation of health risks below an individual dose of 5 rem in one year or a lifetime dose of 10 rem above that received from natural sources." The position statement goes on to say that "there is substantial and convincing scientific evidence for health risks following high-dose exposures. However, below 5-10 rem (which includes occupational and environmental exposures), risks of health effects are either too small to be observed or are nonexistent."
On May 26, 2010, the Director, Compensation & Pension Service, responded to the RO. The ADCPHEHO memorandum was discussed and it was noted that based on the DD Form 1141, it was estimated that the Veteran was occupationally exposed to a dose of ionizing radiation during service of 0.033 rem. The Director further stated:
As a result of the medical opinion, and following review of the evidence in its entirety, it is our opinion that there is no reasonable possibility that the [V]eteran's brain cancer diagnosed glioblastoma multiforme can be attributed to his occupational exposure to ionizing radiation in service.
The appellant and her attorney disagree with the accuracy of the DD Form 1141 and argue that the Veteran was exposed to significantly more radiation than documented in official military records. Specifically, they assert that he was exposed to a massive dose of radiation when he stood fire watch over contractors removing asbestos from the reactor compartment following Hurricane Hugo. They further assert that he was ordered to remove his TLD (thermoluminescent dosimeter) and that is why this exposure is not shown in the DD Form 1141. In support of this theory, they have submitted extensive argument and evidence to include lay statements, a medical treatment record in which the Veteran described an altercation with a supervisor, military records, Command Histories, etc.
Evidence of record shows that Hurricane Hugo was in September 1989. A review of the Command History for the calendar year 1989 shows that the BANCROFT was tied up pier-side at the Naval Weapons Station in Charleston and sustained no damage from Hurricane Hugo. The Veteran's DD Form 1141 shows that for the period from July to November 1989, he had a total exposure of 0.023. This was the highest dose recorded during his time aboard. The Board notes that the Veteran lost or failed to turn in his TLD during the period from March 1991 to June 1991 and that his dose estimate for that period had to be based on a coworker's exposure. There is, however, no objective indication that he was not wearing his TLD as required or that it was otherwise lost during the period following Hurricane Hugo in September 1989. Thus, the Board presumes that his radiation exposures were properly documented. The appellant has not rebutted that presumption by submitting clear evidence to the contrary. See Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (explaining that there is a presumption of regularity that attends the administrative functions of the government that can be rebutted by the submission of clear evidence to the contrary, and noting in the context of mailing of a Board decision that evidence of non-receipt by a veteran or his representative, standing alone, is not the type of clear evidence sufficient to rebut the presumption).
The attorney also argued that there are some months missing from the DD Form 1141. On review, the form documents radiation exposure for the "Blue" crew. The missing months pertain to those periods where the "Gold" crew was in command. Thus, given that the Veteran was a member of BANCROFT'S "Blue" crew, readings were documented for those periods where the Veteran was actually on the submarine. In this regard, the Board takes administrative notice of the fact that ballistic submarines such as the BANCROFT, a BENJAMIN FRANKLIN class fleet ballistic missile submarine, employed two crews, one Blue and one Gold. This was designed to facilitate continuous operation at sea in order to have continuous "forward-presence" in Navy parlance.
The Board acknowledges the lay contentions of record and notes that lay persons are competent to report what the Veteran told them regarding the circumstances of his service, including radiation exposures. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (lay persons are competent to report on matters of which they have personal knowledge). Lay persons are not, however, competent to provide a radiation dose estimate, see id. at 470 ("Generally, lay testimony is not competent to prove that which would require specialized knowledge or training."), or to provide an etiology opinion on a complex medical question, see Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.").
Regarding etiology, the appellant submitted an internet article indicating that "[t]here also appears to be a small link between ionizing radiation and glioblastoma." The appellant also testified that the Veteran's private physician, Dr. H., told him that his cancer was caused by high dose radiation exposure. Subsequently, the appellant submitted a January 2015 statement by Dr. H., in which the doctor recounted that the Veteran was a patient of his who was diagnosed at 41 years of age with a glioblastoma multiforme. Dr. H. describes a glioblastoma multiforme as "an aggressive primary brain tumor more typically occurring in patients between ages 50 and 80" and notes that the "exact etiology for these tumors is typically unknown." Dr. H. continues:
The information that I was given in regards to [the Veteran's] history is a prior exposure to radiation as part of his military duty. According to the records, it appears impossible to quantitate the level of radiation exposure from this assigned duty.
What is known is that radiation itself is a class 1 carcinogen. We do have data in regards to radiation treatment for cancers in patients treated for Hodgkin lymphoma and followed over the years. The typical time to developing a radiation induced solid second malignancy was in the range of twenty years after treatment, which would certainly fit into his time schedule. It is thus certainly feasible that his brain tumor was related to the radiation exposure during his service in the military.
The appellant's attorney acknowledges that the "preferred phraseology" for establishing service connection is "at least as likely as not," rather than "certainly feasible." The attorney argues that "certainly feasible" meets the requirements for establishing service connection as well as "at least as likely as not." In support, she cites Mattern v. West, 12 Vet. App. 222 (1999), which she argues stands for the proposition that an appellant need only show a "plausible" or "possible" relationship to establish service connection. The appellant's attorney misinterprets Mattern.
Mattern was decided prior to the enactment of the Veterans Claims Assistance Act of 2000, when VA had a duty to assist claimants only after the claimant first demonstrated that a claim was well grounded. See, e.g., Duenas v. Principi, 18 Vet. App. 512, 515 (2004). Mattern involved an appeal from a Board decision finding that the appellant's claim of service connection for the cause of the Veteran's death was not well grounded. Mattern, 12 Vet. App. at 225. The Court explained that a claimant has the initial burden of establishing that a claim is well grounded, i.e., "a plausible claim, one which is meritorious on its own or capable of substantiation . . . [that] need not be conclusive but only plausible." Id. (quoting Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court further explained that "in order for a claim to be well grounded it need not be supported by evidence sufficient for the claim to be granted" and that "the law establishes only a preliminary threshold of plausibility with enough of an evidentiary basis to show that the claim is capable of substantiation." Id. at 228 (citations omitted). Finally, the Court explained that any failure of a physician to provide a basis for an opinion "goes to the weight or credibility of the evidence in the adjudication on the merits rather than the threshold determination of well groundedness, a stage at which the claimant's evidence is presumed credible." Id. at 229 (citations omitted). Ultimately, the Court held that the medical opinions and treatise evidence submitted by the appellant, presumed credible, found the claim well-grounded and remanded the case to the Board for further development and readjudication. Id. Thus, the "plausible" or "possible" standard relates to an initial determination as to whether a claim was, under pre-VCAA law, well grounded. With respect to the determination on the merits of the claim, the claimant has the burden to support each element of the claim to an equipoise standard. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
On review of the above evidence, the Board finds that the May 2010 advisory medical opinion of the ADCPHEHO and the May 2010 opinion from the Director, Compensation & Pension Service, are entitled to the most probative value. Dr. H's January 2015 opinion is entitled to little to no probative weight as it is based on an inaccurate factual premise - "it appears impossible to quantitate the level of radiation exposure from [the Veteran's] assigned duty." See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, contrary to the appellant's attorney's argument, Dr. H's statement that it is "certainly feasible" that the Veteran's brain tumor is related to radiation exposure during military service is speculative, and the opinion is therefore entitled to little probative weight. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009); McLendon v. Nicholson, 20 Vet. App. 79, 80, 85 (2006) (noting that the Board correctly determined that opinions utilizing the terms "may have been" and "within the realm of medical possibility" were speculative and did not establish a medical nexus). Finally, although Dr. H. explained his reasoning for finding the timing of the radiation exposure and subsequent tumor development to be relevant, he did not explain how he was able to reach his opinion without apparently reviewing data regarding the level of the Veteran's radiation exposure, or to the extent that his opinion can be read as suggesting that any radiation exposure is sufficient, how he came to that conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).
In contrast, the May 2010 advisory medical opinion of the ADCPHEHO and the May 2010 opinion from the Director, Compensation & Pension Service, were stated in sufficiently definitive terms, they were supported by reference to scientific literature, and contained a thorough explanation of the reasons for each conclusion based on review of the entire record and with consideration of the DD Form 1141, age at exposure, and the time lapse between exposure and disease. See id. The Board therefore finds that entitlement to service connection for glioblastoma multiforme, for accrued benefits purposes, is not warranted.
The Board acknowledges that the appellant submitted an internet article indicating that "[t]here also appears to be a small link between ionizing radiation and glioblastoma." Treatise evidence may suffice to establish nexus when combined with an opinion of a medical professional or when, standing alone, it discusses such generic relationships with a degree of certainty such that, under the facts of a specific case, there is causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314, 317 (1998).
Here, however, the article indicates only a general association or "small link" between radiation and glioblastoma. The opinions of the ADCPHEHO and the Director, Compensation & Pension Service, were not based on the absence of a possible link between some radiation exposures and glioblastoma multiforme, rather they explained that under the facts of this case, i.e., exposure of 0.033 rem, a relationship was unlikely. As these opinions had specific application to the instant case, they are of greater probative weight.
Again, the Board has considered the attorney's request for an independent dose estimate. At this juncture, such a request is not appropriate. If the appellant wishes to obtain a dose estimate from a credible source based on her theory of the case, and if such estimate is materially different from that shown in the official military records, then VA may request an independent estimate. See 38 C.F.R. § 3.311(a)(3).
In summary, glioblastoma was not shown during service or within the one year period following discharge from service, and the preponderance of the evidence is against finding that this disorder is related to active military service or events therein, to include radiation exposure. The doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
The claim is denied.
Service connection for the cause of the Veteran's death
Dependency and indemnity compensation is payable to a surviving spouse of a qualifying veteran who died from a service-connected disability. 38 U.S.C.A. § 1310. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports. 38 C.F.R. § 3.312(a).
A service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b).
A contributory cause of death is inherently one not related to the principal cause. In determining whether the service-connected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c)(1).
The Certificate of Death lists the immediate cause of the Veteran's death as glioblastoma. There were no other significant conditions listed as contributing to death but not resulting in the underlying cause. An autopsy was not performed.
At the time of his death, the Veteran was service-connected for lumbar spine degenerative joint disease (60 percent); left lower extremity radiculopathy (40 percent); right lower extremity radiculopathy (40 percent); left shoulder subacromial bursitis (20 percent); and patellofemoral syndrome of the right and left knees (10 percent each). The combined rating was 90 percent.
As discussed above, service connection for glioblastoma multiforme is denied herein. Thus, the Veteran is not service-connected for the immediate cause of his death. While he was service-connected for various orthopedic disabilities, there is no evidence that these disorders contributed substantially or materially to the cause of his death. They were not listed as contributing conditions on the death certificate and the appellant does not argue as such.
The Board further notes that generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. 38 C.F.R. § 3.312(c)(2).
The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
ORDER
Entitlement to service connection for glioblastoma multiforme, for accrued benefits purposes, is denied.
Entitlement to service connection for the cause of the Veteran's death is denied.
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DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs